About Me

Known principally for his weekly political columns and his commentaries on radio and television, Chris Trotter has spent most of his adult life either engaging in or writing about politics. He was the founding editor of The New Zealand Political Review (1992-2005) and in 2007 authored No Left Turn, a political history of New Zealand. Living in Auckland with his wife and daughter, Chris describes himself as an “Old New Zealander” – i.e. someone who remembers what the country was like before Rogernomics. He has created this blog as an archive for his published work and an outlet for his more elegiac musings. It takes its name from Bowalley Road, which runs past the North Otago farm where he spent the first nine years of his life. Enjoy.

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The blogosphere tends to be a very noisy, and all-too-often a very abusive, place. I intend Bowalley Road to be a much quieter, and certainly a more respectful, place.So, if you wish your comments to survive the moderation process, you will have to follow the Bowalley Road Rules.These are based on two very simple principles:Courtesy and Respect.Comments which are defamatory, vituperative, snide or hurtful will be removed, and the commentators responsible permanently banned.Anonymous comments will not be published. Real names are preferred. If this is not possible, however, commentators are asked to use a consistent pseudonym.Comments which are thoughtful, witty, creative and stimulating will be most welcome, becoming a permanent part of the Bowalley Road discourse.However, I do add this warning. If the blog seems in danger of being over-run by the usual far-Right suspects, I reserve the right to simply disable the Comments function, and will keep it that way until the perpetrators find somewhere more appropriate to vent their collective spleen.

Followers

Friday, 18 February 2011

Undoing The State

Nation Building?: If a state is merely the institutional expression of territorial seizure, then the law is merely the state's way of justifying and entrenching the land-grab which gave it birth. By this reckoning, any State which recognises (let alone responds to) the claims of those who inhabited the territory prior to its seizure (viz The Marine & Coastal Area Bill) is committing an act of pure folly.

WHAT IS THE DEBATE over the foreshore and seabed really about? Is it simply an argument over who has the best claim to ownership (and, therefore, right-of-access) to New Zealand’s beaches? A dispute over the precise nature of "Customary Title" – driven by a dispossessed indigenous minority desperate to retain this last, vestigial margin of their patrimony? Or is it about something altogether more profound? Is the debate over the foreshore and seabed really about the nature of law, and the future of the state which enforces it?

Let’s not forget that this whole debate began when the Court of Appeal, overturning decades of what was believed to be "settled law", ruled that the customary rights of Maori to the resources of the foreshore and seabed had not been extinguished by the Crown. If those rights could be legally established, said the Court, full ownership of the designated land and resources could pass to the claimants.

The rest of the story is well known to us all, so let’s pause here and ask ourselves what, exactly, the Court of Appeal thought it was doing – or more accurately undoing.

A majority of the judges of the Court were clearly of the view that the New Zealand State was conceived in law and remains subordinate to legal principles and precedents. According to this view, the ownership rights of a country’s aboriginal inhabitants, if not formally and explicitly extinguished, remain in force.

But, as the excellent docudrama, Waitangi: What Really Happened, broadcast on Waitangi Day makes hilariously clear, New Zealand wasn’t conceived in anything except utter confusion. Such law as there was existed only where there was both the will and the means to enforce it. Hone Heke’s axe spoke eloquently and repeatedly on this subject.

Indeed, one could argue that the law – as a tangible and enforceable set of rules – only acquired a purposeful existence after the concrete foundations of the New Zealand State had already been laid.

That didn’t happen at Waitangi – or even at the inaugural meeting of the first New Zealand Parliament in 1854. New Zealand, in the sense of a related and co-ordinated set of institutions operating beyond the effective challenge of any other entity organised within the same territorial space, only came into existence when the settlers, assisted by several thousand imperial troops, invaded the lands and extinguished the authority of the Maori King.

That moment has been described by the legal historian, Professor Jock Brookfield, as "a revolutionary seizure of power" by the Settler State. Professor Brookfield’s description is consistent with the school of jurisprudence which holds that only when there is no other source of legitimate authority to challenge the means of its enforcement does law become real. In other words, law is a consequence – not a precondition – of state creation.

According to this view, the state is born out of what is essentially an act of territorial seizure: not to put too finer point upon it – a land grab. The whole state-building process being nothing more than an elaboration of the means required to hold onto and then manage the territory seized. The mechanisms we construct to do this are dignified by the name of "law". It is, however, dangerous to construe a legal system as anything other than the State’s creature. The law is only ever accidentally about justice. It’s always about politics.

Helen Clark understood all this very well. Her Foreshore & Seabed Act, which Maori quite accurately described as another raupatu – forcible seizure of territory - not only reiterated the "legitimacy precedes legality" formula for the benefit of the Court of Appeal, but also reaffirmed the brute historical reality that "New Zealand" was made by Pakeha, for Pakeha. If Maori were willing to become Pakeha, they could belong. If not – there’d be trouble.

I wonder if the Prime Minister fully appreciates what his Attorney General is undoing with the Marine & Coastal Area Bill – and how difficult it will be to refasten.

This essay was originally published in The Dominion Post, The Timaru Herald, The Taranaki Daily News, The Otago Daily Times and The Greymouth Star of Friday, 18 February 2010.

19 comments:

ChrisH
said...

According to this Wikpedia article, http://en.wikipedia.org/wiki/Aboriginal_title, aboriginal (indigenous) title is well established all over the world and has a long history predating the TOW, with the first (successful) TOW claim as far back as 1847! A key doctrine appears to be the doctrine of continuity which goes back to the 17th century. The thrust of the principle of continuity would seem to be that indigenous title continues in law, in the same way that ordinary villagers' property would normally have done when a province changed hands in some dynastic reshuffle, which happened all the time in Europe back then. Private or indigenous property rights, in this sense, are quite different to the state's economic interest, which is the power to tax the villagers. The exception is if the state decides to abolish title for some purpose such as building a road (hopefully with compensation), which requires explicit legislation. The state has to explicitly extinguish AT, it can't just pretend it doesn't exist. So AT on the foreshore might be politically a can of worms but it certainly is not without precedent; nor on the other hand will either its extinguishment, or failure to extinguish it, bring down the state.

What do you think the Marine and Coastal Area Bill (if passed into law) is "undoing"? Are you concerned that public access to areas of customary marine title will be compromised? Are you concerned that these areas will be outside state control?

It's about time somebody broke the "Maorionly want their day in court" egg.

“With the recent announcement of the Fijian Government to give ownership of its coastal areas to indigenous tribes, it would be ideal to hope that this could offer some support to Maori arguments by is unlikely to have any effect here.

“I completely support and endorse what the Fijian Government has done. They’ve taken an initiative that this Government needs to follow. That unfortunately is not the case with the Government here; the indigenous Fijians are the majority and are in Government where as we are not,” Hingston said.http://www.kahungunu.iwi.nz/…/FIGHTINGTALKONFORESHOREHingstonTalk.docFIGHTING TALK ON FORESHOREBy Kui Paki – Tu Mai February 04 – An interview with Judge Ken Heta Hingston

What do you think the Marine and Coastal Area Bill (if passed into law) is "undoing"?

...A move away from all New Zealanders have an equal interest in the foreshore and seabed to a recognition that all coastal iwi have a greater interest (based on inheritance) is a good start.

Tariana TuriaThe Bill abolishes Crown title and recognises customary interests (mana tuku iho) of all coastal iwi. Customary interests include a right to protect wahi tapu; and a right to be consulted on conservation and resource management.

The Bill allows iwi to claim customary title. Customary title is a property right that includes customary interests plus all minerals except gold, silver, uranium and petroleum; all newly found taonga tuturu, development rights, and a right to develop a plan which regional councils must recognise and provide for.

This Bill transfers the burden of proof, so the Crown has to prove customary rights were extinguished, rather than iwi having to prove they were not.

It sets new threshold tests for customary title, unlike the 2004 Act. The tests incorporate tikanga, allowing for variations among iwi, transfers of rights between hapu, and for tikanga to evolve. For example, allowing others to fish, and overlapping rights of neighbouring hapu, will not disqualify claims (manaakitanga is part of tikanga). Spiritual or cultural associations, as well as traditional usage, are also parts of the test.

The tests do NOT require claimants to own adjoining land (so raupatu iwi can claim customary title).

To support claimants in their applications, the Crown will provide funding in a manner similar to how claimant funding is provided in the Treaty settlement negotiations process.

We believe that to turn our back on this Bill, would be to break the promise we made to our people in 2005 that the Maori Party would repeal the 2004 Act. If the Bill isn’t passed, the law that deprived our people of their day in court, of their mana moana, will remain in force. Is this what the people want? Is this why we marched?

The Bill does not settle the issues, but it keeps them alive. It is our contention that the Maori Party can advocate for customary rights and tikanga in the Bill, but only tangata whenua can negotiate and settle matters of mana and rangatiratanga.

Iwi accept that in their treaty settlement negotiations they will likely receive between one and three percent of what was originally taken. Given this, it seems unrealistic to expect a political party of five to get back everything taken through the 2004 Foreshore and Seabed Act.

We know that the Bill does not give us everything we wanted, but it is a step forward. It reopens the door that was slammed shut in 2004.

For me its simple – do we take a step forward, knowing this is but one small step on a long journey?

Or do we withdraw to the sidelines, and wait for another day, risking all our hopes on a possibility that Labour or National will want to have another go, somewhere along the line. I can’t take that chance – our progress and our development is too important to put on hold.

"Professor Brookfield’s description is consistent with the school of jurisprudence which holds that only when there is no other source of legitimate authority to challenge the means of its enforcement does law become real. In other words, law is a consequence – not a precondition – of state creation."

It is true that if there is no monopoly on force (ignoring the strange and oddly contradictory use of the term "legitimate" in this passage), then it is impossible to have genuine (read: effective) law. IIRC Hobbes proposes something like this, which is one reason why people can't contract with the sovereign power but only with each other.

Let's just grant this for the sake of argument.

"According to this view, the state is born out of what is essentially an act of territorial seizure: not to put too finer point upon it – a land grab. The whole state-building process being nothing more than an elaboration of the means required to hold onto and then manage the territory seized. The mechanisms we construct to do this are dignified by the name of "law"."

This simply does not follow from the original thesis. Again the contractarian tradition is instructive. The state's monopoly on force may arise by agreement among citizens, who agree to empower a sovereign with this power in order to avoid a state of nature. More importantly, giving the state a monopoly on force can, according to the contractualist offshoot of the Hobbesian tradition, be justified as what rational persons would agree to under a hypothetical position of equality.

A state need not arise from a power grab, where this is understood as the seizure of power by an oligarchy or a tyrant. In any case, even if it did, subsequent alterations such as democracy, may make the power legitimate.

"It is, however, dangerous to construe a legal system as anything other than the State’s creature. The law is only ever accidentally about justice. It’s always about politics."

I don't see as this being as controversial as it sounds. It entails is that there can be unjust states, but we all knew that.

I think you are right in that the identity politicians seek a withering of the state (I made this case the other day), but I do not think they are effecting its abolition. A separatist Maori state would be the result of devolution, which does not entail civil war. It would only mean the state we have now abandoning certain non-essential powers and not the monopoly on force.

"But, as the excellent docudrama, Waitangi: What Really Happened, broadcast on Waitangi Day makes hilariously clear, New Zealand wasn’t conceived in anything except utter confusion. Such law as there was existed only where there was both the will and the means to enforce it. Hone Heke’s axe spoke eloquently and repeatedly on this subject."...That's true and the treaty had to be ratified by parliament and to the agriculturalist/ developers Maori were just natives whose lands were needed. Does it follow that common law (aboriginal title) comes with its British citizens when common law (in this case) applies to all areas occupied at 1840? After all, common law is law that has been well settled within a state, but is it just that todays non Maori portion of 4.4 million owe the descendants of the (up to?) 100,000 Maori? Commonly we emigrate and become a citizen , swear allegiance and protect the shores of our country; we are not visitors (despite a duty of manaaki manuhiri - we are obliged to look after our guests and ensure they are well-treated and respected - Mutu)?

Tautoko .Most Pakeha don't understand the foreshore and seabed debate; they don't believe the government would "just give it away". They think it's just some sort of legal hitch to do with Maori or some practice they don't understand, like: Moari just want mana. I see the Maori Parties problems with Hone as: Tariana and Pita are at a wall in that they can't overtly claim what they are claiming and appear reasonable (softly, softly, catch a monkey) whereas Hone wants to lead a charge NOW!

Is a Moratorium in order here, should we take a legal position on the foreshore,perhaps at a time before the foreshore Act, leaving rights as they were,and require political bipartisan approach as well as Social converse for a long time, This would suit conservatives because many new New Zealanders will arrive here and vote;and of course this is the natural outcome;we all own the foreshore

The real people who want the foreshore and seabed are private owners and private interests...

Who literally want the sand for the shores..

Do you really think the crown is thinking about what is best for the average New Zealander, or that maori are against protecting the beautiful shores of Aotearoa..? The crown is selling New Zealand to the higest bidder..

This is a subject that I approach diffidently, in the knowledge that many far wiser and better informed than I have found themselves befuddled by its complexity.

However, I'm not sure that the "Revolutionary Seizure of Power" description of nineteenth century New Zealand history necessarily implies the extinction of "Native Title".

Victorian colonists brought with them the content of the English Common Law and the English tradition of judge-made law.

The former clearly recognised the existence of customary title, even when this conflicted with standard fee-simple ownership.It also accepted that customary title was reconcilable with overall crown ownership of the realm.

According to one important strand of English jurisprudence, the Common Law is all about deciding what is customary. This is in contradistinction to both the ethical rationalism of Natural Law doctrines and the Utilitarian "Command of the Sovereign" tradition, invoked by Chris in his post.

Once the colonial and imperial forces were triumphant in the 1860s, the Common Law became the automatic default of New Zealand's legal system. Only statute law could over-ride it. Of course, the courts often tended to find against Maori customary claims. But could this not have been less an issue of legal doctrine than of the inherent racism of the judiciary and the economic interests of the colonists?

It could, of course, have been worse. Had the French taken over instead of the Brits, our starting point may well have been the monolithic rationalism of the Code Napoleon, with its "my way or the high way" clarity. But this thought would have provided little comfort to those who lost out.

However, where the "Revolutionary Seizure" doctrine does seem to make a difference is in providing a more robust justification for the use of statute to override (or codify) Common Law than is allowed for in the "Treaty as founding document" approach.

If , under the founding document theory, you only have recourse to the Treaty's Maori text, it could be argued that Parliament has no status on issues of traditional ownership or customary usage.

I doubt whether this is the Attorney General's understanding but it does seem to be Tiriana's, particularly when she refers to the mob in the Beehive as the "Settler Parliament".

"If a state is merely the institutional expression of territorial seizure,..."

But it is not. Might is not necessarily right. As international law said at the time, which is why the Australian settler state tried to claim terra nullius.

Land (including wet land) had to be unoccupied, gifted or bought to be fairly acquired. Not by killing the occupants, or nicking the land off them.

Clark's arrogant assumption that the state's sovereignty implied ownership of all the land (in 1840, or rights to acquire that land) triggered this nonsense.

Maori have simply asked that their collective ownership of land be treated the same as collective pakeha ownership, or individual Maori and pakeha land ownership.

Example - Ngati Whatua in Auckland would say they collectively owned the Okahu Bay foreshore and seabed, but it was taken from them by the Crown. Yet the Crown is happy for the predominantly pakeha owned Kohimarama Yacht Club to have collective ownership/use of the foreshore and seabed in that neighbouring bay (their clubhouse is built on piles over the foreshore and seabed). Unequal treatment, and patently unjust.

The question of establishing what areas of foreshore and seabed were actually owned by iwi & hapu as at 1840 is a more detailed and trickier issue.

Another do-gooder(Anonymouse above). These people are Shylocks who come for their pound of flesh but who forget that they mustn't draw any blood.>>

Land (including wet land) had to be unoccupied, gifted or bought to be fairly acquired. Not by killing the occupants, or nicking the land off them. .....

Can you name somewhere where the sea has been bought?

It was the fruit, vegetables and animals that the Europeans brought with them that enabled the population to grow (increased carrying capacity),

================maori have simply asked that their collective ownership of land be treated the same as collective pakeha ownership, or individual maori and pakeha land ownership.......Very reasonable until you consider the present day context, which might be stated as "the decendants of the 100,000 or so maori present at the time of colonisation, are simply asking that we recognise that the whole country (minus certain private titles) belongs to them".

The question of establishing what areas of foreshore and seabed were actually owned by iwi & hapu as at 1840 is a more detailed and trickier issue.

Trying to sound reasonable are you?

Mr Trotter covers that here:"By convincing the National Party leader that the foreshore and seabed issue is nothing more than a dispute over property law, they have opened the way to a much more radical application of indigenous rights.

For who can dispute that, at one time, the entire geographical entity we call New Zealand was the property of Maori collectivities?

And, if they have a customary right to New Zealand's beaches, then why not its rivers, estuaries, swamps, lakes, forests and everything else? "http://www.stuff.co.nz/blogs/opinion/258693

PSWas driving back from Dunedin to Chc. Decided to take the coast road at the old mill after visiting Moeraki. Lovely around there. I can see where the attachment to place comes from. I've got a deep attachment to the hills around Lyttelton Harbour (although having been measured by the Department of Spiritual Affairs it isn't as deep as a tangatawhenua tap root).